own conviction of the wrongful and illegal
requisition is without a shadow of doubt
I have received from you so many proofs of
your regard and confidence, communicated
in a manner so very flattering and agreeable,
that it enhances my regrets at the different'
views I have to take of constitutional law and
executive duty. In what may be further
said, I beg to assure you that I shall do so
with perfect respect to you and your views,
and yet with the freedom which a friend and
citizen may take, when in his own mind be is
vindicating the cause of truth and of law.
It is scarcely necessary to say that the
objectional provisions of the proposed consti-
tution would not prevent the enjoyment of
my suffrage, and that I have no other interest
in the matter than as a citizen of the State,
who desires the constitution to be observed
and the law respected.
In regard to the unconstitutionality of the
provision which requires an oath of voters
unknown to the constitution and in repug-
nance to it and to the law, I did not suppose
that any lawyer in the State (outside of the
convention) could entertain a doubt, nor do
I understand you to express any, and I am
sure if you entertained one, no one could find
language more expressive and cogent than
yourself to declare it. But you are too good
a lawyer to entertain such an opinion, and
your unwillingness to interfere must be predi-
cated on other grounds. You refer to the first
constitution as not having been submitted
to the people, and express the opinion that
such reference was not essential to its validity.
I have not the data and the facilities to exam-
ine into the history of that constitution, and
cannot therefore venture an opinion upon the
fact of its submission to a popular Vote, but
I may safely lay down as a postulate, that if
the law which called the convention required
its submission, it was done; if it did not
require it, it gave plenary power to the con-
vention to form a constitution by its own
acts. Another postulate I may safely advance
is, that if an act of the assembly, authorizing
a vote of the people upon the question of con-
vention or no convention, directs the manner
of electing delegates) and requires their work,
when done, to be submitted to the voters of
the State, (he convention cannot make a con-
stitution that would be binding without its
submission to and ratification by the people.
You refer to an irregularity in calling the
convention of 1851, and the provisions of the
old constitution upon the subject of its amend-
ment. I believe that some did think the man-
ner of the call irregular, but not that the
people could be restrained from making
another constitution. However, if it proves
anything, it is only as to the manner of call-
ing it, not to any abridgment of the people's
rights under it. The call, if irregular, was
made by the people, for their benefit, to ena-
ble them to form such a constitution as they |
wished, embracing their views and opinions
which the changed circumstances and pro-
gress of the age made expedient, but there
was no complaint that the sovereign people
were affected or prejudiced in their rights by
any innovation. If the opinion was well
founded, it only shew that the people were
sovereign, and did not feel bound by forms
and regulations which affected only the time
and manner of doing what they thought
should be done in a briefer period and a dif-
ferent " ode. It was the people who did and
sanctioned it. If then these irregularities
existed, of which you write, they were those
of the people, the masters, to carry out and
effectuate their own will, and not those of
their own agents or deputies appointed by
them, and whose acts are now attempted to
he set up to defeat the will and purposes of
their principals and sovereigns. It would be
an anomaly to allow an agent to prescribe
terms to his principal to restrict him and
deprive him of his primary and essential
right?: or where there were a number of
principals, that the agent should select such
as he pleased to adjust their accounts, or
make conditions precedent that would exclude
some from any participation in the settlement.
But the reason applies with greater force
where a constitution is to be made for all
time, when the prohibition is to be perpetual,
binding not only the present but future generations.
If the late convention had authority to
insert the oath as a prerequisite to the right
to vote, they had equal authority to insert
other provisions upon that subject. The con-
stitution declares that voting shall be by bal-
lot. Had the convention power to change
that requirement and say it should be viva
voce? The constitution enacts "that every
free while male person of twenty-one years
of age, who shall have been one year next
preceding the election a resident of the State,
and for six months a resident of the city of
Baltimore, or of any county, in which be may
offer to vote, and being at: the time a citizen
of the United States, shall be entitled to vote in
the ward or election district in which he
resides, in all elections hereafter to be held, and
at all such elections the vote shall be by bal-
lot." (Article 1, section 1.) Would it not,
therefore, have been as competent for the
convention to abrogate the ballot as the elec-
tive franchise of those who, in the same arti-
cle, are declared to be entitled to exercise it?
Suppose the convention had required of every
one offering to vote, to swear that he was
worth five hundred acres of land and a stated
amount of personal estate? Suppose it had
asserted that every free male person, without
distinction of color, over twenty-one years of
age, &c., should be entitled to vote, would
these attempts be more palpably unconstitu-
tional than the other in regard to the oath?
To be sure, they strike the moral sense with |
